CUB 76374

L.-P. LANDRY, Umpire

The claimant appeals from the decision of the Board of Referees, which upheld the Commission's decision to the effect that he was not eligible to receive benefits because he lost his employment as a result of his own misconduct under sections 29 and 30 of the Employment Insurance Act. The claimant also appeals the Board's decision on the issue of his failure to prove his availability in accordance with section 37(a) of the Act, for the period June 11 to June 30 2009.

On February 7, 2011, the claimant requested an adjournment of the hearing set for February 10, at Toronto. He suggested that the hearing should be adjourned to a date determined after the end of his trial set for November 24, 2011 at Toronto. He submitted that the result of this trial would be relevant to the issue in this case. For the reasons expressed hereunder, I find that the ends of justice will be better served by referring the matter to a new Board, the new hearing to be set after the end of the trial.

On June 11, 2009 the claimant was arrested while he was working on the premises of his employer CSEO General. He was charged with armed robbery for a theft which had occurred in February 2009 in his employer's warehouse. He was held without bail until June 30. On this later date he was released on bail with various conditions and more particularly a condition that he lives with his parents and refrains from communicating with his employer. The evidence shows that the employer was aware of the claimant's incarceration and it would appear that the employer was instrumental in directing the police to the claimant as being one of the suspected thieves.

The employer dismissed the claimant on June 25, 2009. The employer based its decision on the fact that the claimant had been absent from work for a period of three days without being on an approved leave of absence, contrary to article 14.02(f) of the collective agreement. The letter further stated:

"We are aware that you have been arrested in connection with an armed robbery that occurred in the warehouse in which you work. Please be advised that we reserve the right to rely on additional grounds for termination related to your alleged involvement in this robbery should we deem it necessary".

The Board concluded that the employer "was within his rights to dismiss the claimant from breaching the conditions of employment as outlined in article 14.2(f)." The Board further noted the following:

"The Board finds as a fact that the claimant lost his employment because of misconduct. It was his alleged actions that caused him to have a bail condition that prohibited him from reporting for work"

The Board further added the following after a reference to CUB 42431:

"As in the case in hand, the employer could no longer trust the claimant after he was criminally charged with armed robbery and forcible confinement in the workplace. The claimant breached the trust of his employer which was an essential condition of the employment."

It therefore appears from the above that the Board concluded that the claimant is responsible for his incarceration. According to the Board, this incarceration is the result of the "alleged actions" of the claimant.

The Board's decision is based on a finding of misconduct. Under the Act misconduct results from a willful conduct or a conduct so reckless as to approach willfulness. Did the claimant willfully abstain from obtaining a leave of absence before he was arrested? The answer to that question is clearly no. The claimant was arrested in front of his manager at his place of work. The employer was aware that the claimant was incarcerated further to the arrest. Whether it was legitimate or not for the employer to dismiss the claimant, is not a question that arises in the present case. The question must be answered in light of section 30 of the Act.

The Board appears to take the position that the claimant is responsible for his predicament. The claimant would be responsible for his predicament if it is shown that he committed the crime for which he was charged. The commission of a criminal offence requires proof of willfulness, "mens rea". If a person by reason of the commission of a criminal offence is sentenced to a period of incarceration, that person is unable to continue an employment during the period of incarceration. The person is unable to fulfill her employment further to an incarceration which is the result of willful misconduct, to wit, the commission of a criminal offence.

In this case, no evidence of the commission of a robbery has been adduced by the Commission before the Board. Evidence of the participation of the claimant in the robbery could be adduced before the Board. The absence of a criminal conviction would not prevent the Board from concluding on the basis of evidence produced before the Board that the claimant has committed a willful act which constitutes misconduct. The mere evidence of an arrest and charges laid does not amount to such proof.

The Board refers to authorities out of context. For instance the Board refers to CUB 42431 where Umpire Marin stated that a conviction was not required before a Board could conclude that an employee had stolen or attempted to steal articles belonging to his employer. It is important to note that in that case, that Board heard evidence of the acts committed by the employee. The evidence showed that the employee in that case had removed jeans from the premises of his employer and deposited them in his car. Here no evidence of the commission by the claimant of the alleged robbery has been adduced.

The Board also relied on the decision of Umpire Goulard in CUB 72809. In that case Umpire Goulard makes the following statement:

"It is well established in the jurisprudence that failing to report for work when expected to, without informing his employer of his absence, constitutes misconduct pursuant to the Employment Insurance Act (CUBs 32458, 54837 and 63776). It has also been well established that a claimant who loses his employment as a result of incarceration, leaving him unable to report for work, has lost his employment due to his own misconduct (Borden (A-338-03), Lavallée (A-720-01), Easson (A-1598-92), Brissette (A-1342-92)). In Borden (supra) Justice Létourneau wrote:

"The fact is that the employment relationship was terminated by the defendant's imprisonment because he was no longer in a position to fulfill an essential condition of his employment contract. As the Supreme Court of Canada ruled in Québec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., 2003 S.C.C. 68, at paragraphs 32 and 33, where an employee who cannot work because he is incarcerated is dismissed, "the dismissal arises out of the fact that the employee is not available, which is itself an inescapable consequence of the deprivation of liberty lawfully imposed on an employee who has committed a prohibited act... Every incarcerated offender must suffer the consequences that result from being imprisoned, namely loss of employment for unavailability".

With respect to the first part of the above quotation, Umpire Goulard refers to three cases of dismissal for absenteeism. CUB 32458 and CUB 63776 are cases of repeated absences from work without notice. CUB 54837 refers to a case where an employee was absent from work from April 9 to April 26 2001 without any notice to the employer. In this latter case the employee had been away gambling in casinos. In all of those cases the conduct of the employees was determined to be willful.

In the Case of Borden referred to above the claimant lost his employment after receiving a two year sentence of imprisonment further to a conviction for a criminal offence. In Lavallée, the claimant was unable to pay a fine of $9000, further to convictions for violations of the Highway Traffic Safety Code. The claimant served a period of time in jail and was dismissed from his employment as he was unable to work for that period. In Brissette, the claimant lost his employment after losing his driver's license further to a conviction for impaired driving. The Easson case deals with a case of absenteeism leading to a dismissal.

It will be noted that none of the above cases apply to the present situation. In those cases misconduct was established further to repeated absences from work without notice or for inability to work as a result of sentences imposed further to convictions for criminal offences or traffic violations. The absences referred to were willful. The offences leading to convictions were also willful.

In the present case the absence of the claimant from work was not willful. However, if it was proven that his incarceration was justified by reason of the commission of a criminal offence, one could conclude that the absence of the claimant resulted from a willful act and constituted misconduct under the Act. In order to arrive at this conclusion evidence of the unlawful act must be produced before the Board either by proof of a conviction or by adducing evidence showing that the claimant willfully committed or participated in the alleged theft.

In Meunier v. C.E.I.C. (A-130-96) an employee was dismissed from his employment after being charged for sexual assault. The only evidence adduced before the Board was that those charges had been laid. The Federal Court of Appeal clearly established that the fact that charges are laid is insufficient to allow a conclusion of misconduct. Décary J. stated the following:

"In our view, the Commission has not done its duty. In order to establish misconduct such as is penalized by section 28, and the connection between that misconduct and the employment, it is not sufficient to note that criminal charges have been laid which have not been proven at the time of the separation from employment, and to rely on speculation by the employer without doing any other verification. The consequences of loss of employment by reason of misconduct are serious. The Commission, and the board of referees and the umpire, cannot be allowed to be satisfied with the sole and unverified account of the facts given by the employer concerning actions that, at the time the employer makes its decision, are merely unproved allegations. Certainly, the Commission will be more easily able to discharge its burden if the employer made its decision, for example, after the preliminary inquiry had been held and, a fortiori, if it made the decision after the trial."

For those reasons I therefore conclude that the Board erred in law and that the proper course to follow is to refer the matter to a new Board in order to allow the parties to adduce new evidence and, more particularly, the final judgment in respect of the criminal charges laid against the claimant.

The appeal is therefore allowed, the Board's decision is set aside and the matter is referred to a newly selected Board of Referees. The case will be set for hearing before the new Board after the final judgment is rendered in relation to the charges laid against the claimant. The decision of the Board in the present case will be removed from the docket.

L.P. Landry

UMPIRE

GATINEAU, Quebec
February 21, 2011